Supreme Court

Should Justice Barrett Recuse from 2020 Election Litigation? (Updated)

There's no precedent for a recusal, but there's also no precedent for the current situation.

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This evening, within hours of the Senate's party-line confirmation vote, Amy Coney Barrett was sworn in as the 103rd Associate Justice of the Supreme Court of the United States. While the Senate was preparing to vote, the Supreme Court issued yet another order in an election law case concerning state election rules. Like the Senate, the Court divided along ideological lines.

Now that Justice Barrett is on the Court, it is inevitable that she will be asked to participate in another election case. Litigation is ongoing, and more cases are likely to be filed between now and the election (and perhaps even after). Should she recuse from such cases? Here are my tentative thoughts on the matter (some of which I expressed here).

The relevant portion of the U.S. Code* provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Although this provision does not formally apply to Supreme Court justices, they have traditionally sought to comply with these rules, though erring on the side of not recusing. Unlike on lower courts, there is no one to replace a recused justice, so if one of the nine sits out a case, it is necessarily more difficult for the petitioning party to prevail. Another caveat is that each of the justices gets to make their own recusal decisions; they cannot be forced off of a case by their colleagues.

As traditionally understood, recusal is required when a judge has a financial interest in the case, is related to one of the parties, or has worked on the case prior to becoming a judge. So, for instance, Justice Alito has recused multipe times due to his financial holdings, Justice Sotomayor recused in American Electric Power v. Connecticut because the case was before the U.S. Court of Appeals for the Second Circuit while she was still a judge there, and Justice Elena Kagan recused from matters upon which she worked in the Solicitor General's Office.

Recusal is also required when a judge has expressed an opinion on the merits of the case or otherwise demonstrated bias, such as by making extrajudicial comments about one of the parties. On the other hand, recusal is not required because of a judge's prior rulings, statements about general legal matters or even relationships with government officials with matters before the Court in their official capacity.

Applying these standards, it would have been appropriate for Justice Ruth Bader Ginsburg to recuse in a 2016 election case involving Trump, due to her comments expressing her desire that Trump lose, but she had no cause to recuse in cases challenging Trump Administration policies just because she said bad things about Trump the person. Likewise, Justice Scalia may have been required to recuse in a case against Dick Cheney, the person, but he had no obligation to recuse in the case against the Vice President's energy task force (as he explained here).

As odd as it may seem to some, federal judges are under no obligation to recuse in cases involving a prior benefactor, and there is no precedent for judges or justices recusing because a case implicates the interests of the President who nominated them. Justices Gorsuch and Kavanaugh did not recuse in Trump v. Vance and Trump v. Mazars, and Justices Ginsburg and Breyer did not recuse in Clinton v. Jones. Likewise, the only one of President Nixon's appointees to recuse in United v. Nixon was William Rehnquist, who recused because of his work in the Office of Legal Counsel, not because he was a Nixon appointee.

Based upon the above, there would seem to be no basis for Justice Barrett to recuse from a 2020 election law case. But is it that simple?

During her confirmation hearings, Senate Democrats suggested Justice Barrett should recuse from election litigation, and former judge Michael Luttig wrote an op-ed arguing Justice Barrett may be obligated to recuse under the Supreme Court's decision in Caperton v. A.T. Massey Coal. Central to these arguments are not anything that Justice Barrett has said or done, but comments made by President Trump suggesting a reason to confirm a nominee prior to the election is to ensure that there are nine justices for any such dispute. Is this enough to justify recusal? I am not so sure.

Without question, Trump believes that a conservative justice is more likely to support the formalist, rule-bound arguments being raised by Republican office holders and campaigns in current election disputes, and wanted a justice confirmed for this reason. He may even think that any justice he appoints will feel indebted to him. But this tells us more about President Trump's motivations than it does about Justice Barrett's ability to adjudicate such cases fairly, and there is little precedent for judges recusing because of things litigants have said about them (as opposed to comments judges have made about litigants). Thus, President Trump could not get a judge to recuse just by disparaging his ethnicity or questioning his fairness (and this is as it should be, or litigants would be tempted to engage in manipulative behavior). Likewise recusal is never required just because a case is controversial or politically fraught.

It is also not clear that the importance of a case to a nominating president is enough to trigger recusal. Recall that when Justice Stevens retired, President Obama wanted to be sure that whomever he appointed would be able to participate in the pending ACA challenges (and not because he lacked any inclination about how such a justice would rule). He nominated his own Solicitor General, Elena Kagan, who had conveniently walled herself off from all ACA-related matters in the Justice Department and would not have to recuse in NFIB v. Sebelius. There is little question that had she not taken such actions at DOJ, she would not have been nominated (and that seems to have been the point), as President Obama was concerned about the potential outcome of the challenge to the Administration's central domestic policy initiative. Despite these facts, I was unconvinced by the arguments for Justice Kagan's recusal then, and I am not sure why the arguments for Justice Barrett's recusal are more persuasive now.

Are there reasons why Justice Barrett might still decide to recuse? Perhaps. Justice Kagan's Justice Department work was inside baseball. President Trump has repeatedly broadcast his desire to have a ninth justice who could help deal with contested ballots. Insofar as recusal rules are intended to help ensure public confidence in the courts, different conclusions may be justified where, as here, we have a President who insist upon making precisely the sorts of comments that could cause reasonable people to question a new justice's fairness. As I noted in this Washington Post story, President Trump's own norm-breaking behavior may justify a departure from the traditional norms of recusal. His repeated comments about the role of courts in the election—and the Supreme Court and his nominee in particular—are high-profile that they might create the sort of appearance problem that the recusal rules are designed to address. Simple prudence may counsel recusal in a special case like this. After all, we've never had a justice confirmed in the midst of an election before.

My tentative conclusion is that Justice Barrett has no obligation to recuse, and that her colleagues would agree based upon past practice. But I think it's a close call, largely due to the President's own intemperate and inappropriate behavior combined with the unusual timing of Justice Barrett's confirmation. If any recusal motions are filed, I am curious as to what arguments they will make, and how well they distinguish the present situation from prior practice.

At her confirmation hearing, then-Judge Barrett said she would take the possibility of recusal very seriously, discuss the matter with her new colleagues on the Court, and consider their advice. Should the prospect of recusal get raised, I expect she will do so. And if, in the end, Justice Barrett decides to recuse the President will have no one to blame but himself.

UPDATE: A few updates to the post.

First, on Tuesday morning, a motion for Justice Barrett's recusal was filed in Republican Party of Pennsylvania v. Boockvar, and it cites this blog post.

Second, last night, after the Senate vote, Justice Barrett was sworn in at the White House. The event was broadcast on TV, and is already being used in promotional videos by the President and his reelection campaign. Does this change anything? Perhaps, but I am doubtful.

The strongest argument that the use of these videos counsel in favor of recusal is that the videos themselves, and Justice Barrett's willingness to participate in the event, somehow indicate that she favors the President's re-election. If such an inference could be drawn, it would support the argument for recusal, much as Justice Ginsburg's comments expressing her desire that Trump lost the 2016 election counseled for her recusal in 2016 election cases. Of course, Justice Ginsburg did not recuse when such a case came before the Court, and there is a difference between drawing an inference from a justice's own explicit conduct and drawing one from videos produced by third parties. The case for recusal in the former instance is far stronger.

Finally, a small technical matter. The relevant provisions of the U.S. Code do include "justices" in those covered, but it's generally been understood that Congress could not enforce these limits other than through impeachment. Likewise, the federal Code of Conduct for United States Judges does not formally apply to justices, though justices have generally sought to abide by the Code's requirements.

NEXT: Supreme Court Affirms Stay of District Court Injunction Against Wisconsin Election Law

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  1. No. No heckler’s veto of justice.

  2. Uh. No. You don’t get a 6-3 court and then not use it to help you win. The Rs got their prize, they will use it.

  3. It’s upon Amy Coney Barrett, now, to save America by voting in Trump’s favor, should the election come to that. As unlikely as an expanded Supreme Court would be under a hypothetical Biden Administration, we need ACB to completely put a cap on that by affirming a Trump victory.

    1. Just not enough bigots, incels, hayseeds, religious kooks, and disaffected, uneducated clingers left in America to position Trump for another Electoral College trick shot.

      Instead . . . The reckoning.

      See you guys next week. Then again in January. After that, not so much.

      1. Just not enough bigots, incels, hayseeds, religious kooks, and disaffected, uneducated clingers left in America to position Trump for another Electoral College trick shot.

        Oh, I don’t know. Seems Anti-Fa (Fascist meaning Capitalism), BLM, the Democrat Riots, and others are positioning Trump quite well for re-election.

        See you guys next week. Then again in January. After that, not so much.

        Oh, you’re planning to leave after Trump wins re-election? Reason will be all the better afterwards.

  4. So if a president keeps the deal under the table, it’s legit, but if he speaks the truth publicly, that’s forbidden? Wonderful set of incentives.

  5. President: “I want to confirm this justice so that the Court can help me to win re-election.”

    Senate: “We want to rush through this nominee so that the Court can help us to win re-election.”

    Barrett, in hearings: “Who knows, lulz.”

    Adler: “It’s a close call, because I can’t find relevant precedent.”

    I don’t think we have to be studied idiots about this. There will be a clear question as to Barrett’s impartiality in any election dispute that reaches the Court, particularly one that could ultimately decide who wins the presidency. Trump and the Senate have placed her on the Court, on an expedited basis, precisely to help them in a close race.

    Kavanaugh and Gorsuch – no. We can dissociate them from the current mess that Trump and McConnell have created. They may not be impartial, but they won’t be any more impartial than any other judge or justice concerned about the fate of our country. But Barrett’s lack of experience, her rushed review, and repeated statements about what this is all about raise clear questions about her impartiality in any election dispute involving Trump. Don’t be ridiculous about it.

    1. Your fear is that she will rule in favor of complying with the US Constitution.

      Should Kagan , Sotomayer Breyer recuse because that would rule in favor of the democrats ?

      1. You didn’t even bother to read my comment, huh?

        1. You comment strongly suggested that ACB should recuse because of her potential bias. You singled her out.

          Why omit Kagan, Breyer or Sotomayer who have shown political bias in other cases.

  6. Barrett should recuse from all election cases this season. Otherwise she risks looking as if she is picking and choosing, during what may be a protracted process which will deliver who-knows-what to the Court. Post election chaos could deliver a participant Barret a dilemma from hell. She could find herself torn between one alternative guaranteed to deliver a powerful blow against the Court’s perceived legitimacy, and another alternative which she believes would decide the case wrongly. Barret would be wise not to put herself, the Court, or the nation in that position.

    1. “Barrett,” of course. No ed function.

    2. And you, being so neutral and bipartisan, would also have wanted RBG to recuse herself from all Trump-related cases.

      Yes?

      1. Yes. I said so at the time. I went farther, and suggested she had earned impeachment.

        I managed that without being particularly neutral or bipartisan, by the way. It sufficed to be merely an un-neutral, somewhat partisan institutionalist—with a belief that norms are indispensable.

  7. Only a jew spitting sour grapes would raise a question of recusal. Same silly argument can suggest that Kavanaugh should recuse, or maybe all christians should recuse because the anti-christ is running against Trump.

    Case Western should look at juggling its roster before the world figures out the scam.

    1. Pavel, you are the Borat of the Volokh Conspiracy blog.

  8. “Without question, Trump believes that a conservative justice is more likely to support the formalist, rule-bound arguments being raised by Republican office holders and campaigns in current election disputes, and wanted a justice confirmed for this reason.”

    I question this because it’s giving Trump way too much credit about his thought process. First of all, Trump obviously isn’t “rule-bound” because he keeps hinting that ballots counted after Nov 3rd are illegitimate. That’s obviously not the rule and never has been.

    More broadly, Trump doesn’t think about conservative jurisprudence per se, and I doubt he’s ever used the word “formalist” in his life. He just wants five votes to keep him in power no matter how outlandish his legal theory is and he expects to the justices he appointed plus Thomas and Alito to be team players on this. Given Kavanaugh’s quasi-endorsement of this bizarre “we must know on election night” principle, I can’t say that’s a bad bet for him.

    1. Ballots *counted* after November 3rd or ballots *received* after November 3rd?

  9. So the other 8 justices get a pass in acting on partisan impulses?

    Bush v. Gore was a 7-2 decision on the merits (5-4 on the remedy), and as the ballots were going in Bushes favor anyway during recount. And besides, not being able to pick and choose which districts to recount seems to be obviously correct … the point being that the case everyone points to as a “partisan” court moment … wasn’t really.

    Controversy over mail in ballots seems to be a legitimate controversy, when the election is over what happens? The answer isn’t obvious. I trust barret to act objectively in these scenarios … if that objectiveness means rule in favor of the Republicans, she isn’t doing anything different than anyone else is doing.

    And finally, we are all acting like this will actually change the election outcome … we are all looking at the same polls right? And frankly, the arguments of voter suppression cause covid don’t make a whole lot of sense given that this year record turnout is excepted. So idk what the controversy is. Recent court cases are legitimate disputes about relatively minor issues.

    1. No, the recounts had Gore winning and the justices did engage in partisan hackery because Wikipedia wasn’t around and we couldn’t simply look up the 1876 presidential election which went undecided into 1877. Btw, Kavanaugh and ACB helped Bush steal the 2000 election so they have the deaths of all the Iraqi babies Bush slaughtered along with the soldiers that unnecessarily died and were injured along with the $3 trillion flushed down the toilet…so way to use your lawyerly talents in the name of Jesus!!!

      1. Independent review found the margin of victory increased as the recount process went on. Furthermore, fundentally you cannot simply only recount the districts you want to recount.

        1. Aladdin’s Carpet : Independent review found the margin of victory increased as the recount process went on.

          As a factual matter, you’re completely wrong. The review tallied the Florida vote using different criteria and Bush won sometimes, Gore others. Take overvotes as an example : They were ballots where the vote both punched (or checked) a candidate and wrote his name as well. Technically they were spoiled votes, but by the Florida constitutional provision that ballots should be counted when the intent of the voter is clear, overvotes were one of the easier calls.

          There was a hearing scheduled before Judge Terry Lewis to resolve the question of overvotes when the conservative justices on the Supreme Court intervened to install Bush as president. If overvotes were counted (as clearly they should have been per the Florida constitution), Gore would have won – per the independent review.

          1. If I recall correctly, there was only one scenario found where Gore ended up with more votes.

      2. helped Bush steal the 2000 election

        My days of not taking you seriously are definitely coming to a middle.

      3. Study of Disputed Florida Ballots Finds Justices Did Not Cast the Deciding Vote
        By FORD FESSENDEN and JOHN M. BRODER
        “George W. Bush would have won even if the Supreme Court had allowed the statewide manual recount that the Florida court had ordered to go forward.”

        – NY Times 2000 Election Report
        https://archive.nytimes.com/www.nytimes.com/pages/politics/recount/index.html?p=041TUJ041TRg47nWF012000mXfgkXflT

    2. Aladdins comment “And besides, not being able to pick and choose which districts to recount seems to be obviously correct … the point being that the case everyone points to as a “partisan” court moment … wasn’t really.”

      the resolution to the “contest ” was required to be done at a state wide level under the Florida election code. The Florida SC was the one that only required it in selected counties (undervote v overvotes)

      It was the Florida district that got it correct.
      The US Supreme court got the right answer, though for the wrong reason.

    3. I trust barret to act objectively in these scenarios …

      Why would you do that?

      If Trump trusted her to act objectively, he wouldn’t have nominated her.
      If McConnell had trusted her to act objectively, he would have steered Trump differently.

      The top Republicans have been very forthright on their expectations: If they had any doubt that she would vote for Trump on the SCOTUS, she wouldn’t be on the SCOTUS now.

  10. Whatever happens, we can be sure it will be proclaimed illegitimate by the left unless they get exactly what they want.

    1. You don’t think we’re going to be hearing cries of illegitimacy from Trump on November 4th?

      1. Thats why she’s the judge and you’re the …

        1. She still hasn’t ruled on my motion for a bad court thingy.

          1. Nice Simpsons seque… 🙂

      2. I also heard Trump is bad for doing that sort of stuff the left does routinely.

        1. ok come on, surely the president of the United States can be held to higher standards than idiotic activists right? Did Obama bar entry of the white house from Trump?

          1. No. Double standards are bad

        2. Trump is bad because he’s a sadist who revels in the pain of others. If you can’t understand how he’s materially different from whatever image of “the left” you have in your mind, you’re either willfully blind or a sadist yourself who sees nothing wrong with his behavior. Which left wing politicians are laughing about a journalist getting shot by rubber bullets, praising US Marshalls for killing someone because they didn’t want to arrest them, or openly praising a Congressman who assaulted someone? Which left wing politicians are threatening aid to states because they don’t like their governors and thinking that’s funny to do? I wouldn’t be surprised if you are a sadist of course, lots of Trump support is motivated by sadism. I see it here all the time.

          1. I’d prefer better behavior, but we tried that and we were told Mitt Romney would bring back slavery. So bad behavior was the only choice left.

            Go ahead and name-call if you want. It’s all the left does any more. Complain, name-call, point fingers, plot vengeance for some half-remembered slight from long ago.

            A long time ago we used to hear liberals say they wanted to help people. They don’t say that any more. Now they only talk about how they can punish Americans and about why we deserve it for being chumps or deplorables.

            1. Nah, Ben_ — It’s you and the deplorables who deserve it. The chumps and other Americans deserve better.

            2. Open wider, clingers. Better Americans are about to build a better America . . . On a foundation of crushed clinger aspirations.

              1. Agreed. It will be a great day when you stop clinging to your delusional aspirations.

              2. Walking bandy-legged today after you opened wide and took that big Justice Barrett ‘L’ right in the rear last night, Rev?

            3. Ben…you can always tell when a direct hit is scored. The amount of hand-wringing and squealing (like a stuck pig) rises to a crescendo. Yeah, I’d say there is a direct hit here.

              Next up, confirmation of district court judge #163.

              For eight years, all we heard was that elections have consequences. I could not agree more. They do.

              1. We made people mad and upset hooray! The language of the sadist.

                1. You people get mad and upset about everything. If we let your childish emotions control others, we could never leave the house.

                  1. Yeah, people who think its funny when others are hurt does make me upset. I think that’s a normal reaction unless you’re a sadist who likes hurting others?

                    I decline to not be upset when someone revels in violence. I decline to be cordial to be people who would gleefully cheer as people are hurt.

                    What’s adult about liking the pain of others? Nothing. It’s just sadism and personality disorders.

                  2. But in fact we did, and in some states we can practically never leave the house already.

                2. Crybullying doesn’t really work any more.

                  1. What is crybullying? I just pointed out that sadism is bad. Is it bullying to do that now? “Stop bullying me by pointing out that I have sadist personality traits! It makes me feel bad!”

                    If you revel in the pain of others, you’re going to be called out for it. You can’t enjoy seeing others hurt and not expect to be criticized.

                    1. Judges do this every day… because the pain is justified.

            4. “So bad behavior was the only choice left.“

              “Look at what you made me do.” The classic language of the abuser.

              “Complain, name-call, point fingers, plot vengeance for some half-remembered slight from long ago.”

              Literally what Trump does at every rally. And literally part of the justifications for how SCOTUS is treated: they’re using Bork as a justification still.

              “ They don’t say that any more. Now they only talk about how they can punish Americans and about why we deserve it for being chumps or deplorables.”

              Literally have rally’s with “lock them up” chants. Literally have a President talking about “retribution.” Literally have a President who was threatening aid to a state as punishment for them having a Governor of a different party.

              Congrats Ben_, while there is possibly hope for you because you don’t openly fantasize about murder, I think you might be in the Arktenberg “I am actually just a bad and violent person and am very proud of that fact” club.

              1. You should go see a psychiatrist. They have medication to help you so you no longer have to be obsessed with Trump or suffer anxiety from your lurid fantasies.

                1. What lurid fantasies am I having? I am literally describing what Trump says and does.

              2. Also note: not a word about helping people.

                Does anyone else remember when liberals had motives that weren’t all about hate or fear of one of their numerous bogeymen?

                1. I still do. And I don’t think the emerging fascist party has any room to talk about hate and fear and bogeymen. Trump is trying to use Cory Booker as bogeyman about ruining the suburbs.

  11. There is no doubt about what she will do – if the opportunity comes, she will play her part and help Trump with the coup. The only question is what, if anything, we as a country do about it.

    1. Just like there was no question Roberts was going to kill the ACA. Or how the moment the GOP had control of the house, Senate, and POTUS in early 2000s they were going to outlaw abortion and create a literal handmaid’s tale.

      Got it.

      1. Instead they just slaughtered 600,000 Iraqis and inaugurated the modern surveillance state. Much better.

        1. Pretty amazing what Republicans can accomplish when Democrats are 110% own board with it as well

          1. I mean yeah, with a few exceptions, most Democrats suck too (and were even worse during the Bush years). Not sure how that’s a defense of the Republicans’ wrongdoing, particularly when they were leading the charge.

    2. You will do nothing. OK maybe throw some firecrackers and tear down a statue. Salute.

      1. Lmao yeah, you’re probably right about that. But still far better than you, who would happily lick the boots of any fascist thug with the will to power.

  12. No recusals. It is time to show the power that the conservatives hold.

    1. By doing what? Throwing out legitimate ballots using legal sophistry? Sure go ahead and show your power that way. I’m sure that won’t have any negative long term consequences.

      1. Throwing out ballots that do not meet the requirements of the law, as debated by the legislature, and signed into law by the executive.

        Last nights ruling, enforced the law as written. Unless you know the law violates some other statute, and SCOTUS missed it. Maybe quick telegram to Roberts will help him recognize his deficiencies.

        1. How dare you suggest COVID doesn’t allow judges to create new election laws to favor Democrats?

          I don’t feel safe on this board anymore.

      2. Like not throwing away the legitimate ballots getting Franken the win or Rossi the win

  13. “If any recusal motions are filed, I am curious as to what arguments they will make, and how well they distinguish the present situation from prior practice.”

    Hmmm…. The recusal motion decline that saved nine…

  14. Why, she’s loyal to W Bush and not Trump…only Justice Thomas is loyal to Trump. I heard ACB got a full on “lady boner” when W Bush did shock and awe and she was screaming at Fox News for Bush to “slaughter as many Iraqi babies as you can! Jesus and the Pope are with us in the morally just war because those Iraqi babies messed with Texas…and nobody messes with Texas!!!!”

  15. The relevant portion of the U.S. Code provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although this provision does not formally apply to Supreme Court justices…”

    How do you figure? The statute says that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. §  45(a). How much more formal would you like Congress to make it?

    As traditionally understood, recusal is required when a judge has a financial interest in the case, is related to one of the parties, or has worked on the case prior to becoming a judge.

    I agree that it’s understood that way, but I think it has less to do with tradition than the fact that Congress has expressly demanded it. 28 U.S.C. §  455(b)(2)-(4).

    1. Is not the distinction that inferior courts are the creatures of Congress, while SCOTUS is a direct creation of the Constitution, and consequently it is of doubtful constitutionality for Congress to impose recusal requirements on SCOTUS Justices.

      Article 3 does say :

      “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make”

      so it is possible that Congress might seek to include recusal requirements as part of any regulations it might impose on SCOTUS’s exercise of its appelate jurisdiction. But without explicit mention that a regulation is seeking to regulate SCOTUS’s appelate jurisdiction, it seems unlikely that we should construe a general rule for regulating the conduct of judges as applying to SCOTUS’s appelate (but not original) jurisdiction.

      For, er, noscitur a sociis type reasons.

      1. I have trouble seeing how

        1. Congress’s authority to regulate recusal would vary between Supreme Court and lower court judges;

        2. Congress’s authority to regulate recusal in the Supreme Court would vary depending on the type of case involved;

        3. The latter distinction is so obvious that it should be inferred when the statute is silent about it; and

        4. The latter analysis would implicate the noscitue a social canon.

        If you have any authority in support of any of those points, I’d be legitimately fascinated To read it. To my knowledge, every Supreme Court justice considering refusal has taken it as a given that § 455 applied to them.

        I think what probably happened is that Prof. Adler confused the recusal statute with the Code of Conduct for United States Judges, which does not purport to apply to the Supreme Court.

        1. Where in the Constitution do you find Congress’s authority to regulate the behavior of judges ?

          I find possible authority as regards inferior courts in the words “and in such inferior courts as the Congress may from time to time ordain and establish” in Article 3, where the ordaining and estabishing might be taken to include regulating; and in Article 1 “To constitute tribunals inferior to the Supreme Court” – but these apply only to inferior courts, not SCOTUS.

          And I find the part of Article 3 that I mentioned in my comment above, which might perhaps be taken as a power to regulate SCOTUS judges in the exercise of their appelate jurisdiction.

          But where do you discover any such Congressional power to regulate SCOTUS judges in the exercise of their original jurisdiction ?

  16. It would be playing into the narrative that people like you and Ilya are trying to create that a routine exercise of proper Constitutionally provided power from a duly elected government is somehow illegitimate so no…

  17. “Simple prudence may counsel recusal in a special case like this. After all, we’ve never had a justice confirmed in the midst of an election before.”

    I don’t know what you meant by “in the midst of an election,” but between 1789 and 2020 there have six occurrences of a vacancy arising on the Supreme Court during an election year (and before the election itself), a nomination being made, and a Senate majority belonging to the same political party as the President confirming the nominee. Justice Barrett’s confirmation marks the seventh such time this has occurred.

    1. And the first time since the McConnell rule was instituted, in violation of it.

      1. The current President is in the same party as the Senate majority. Anyone comparing the situation in 2020 with that in 2016 is either confused or deliberately misleading others.

  18. What’s the point of a Supreme Court justice if not to rule on cases? She should do her job.

  19. Smug and self-assured. And now appointed for life. God help us.
    “She would not say, for instance, whether it’s a crime to vote twice, or whether Article II allows Trump to ‘do whatever I want,’ or whether a judge’s ethnic or racial heritage constitutes bias. She wouldn’t answer questions about whether women seeking to terminate their pregnancies could face capital punishment.
    The refusal to answer even the simplest yes/no questions about what black letter law means, and who it binds, has the effect — intentional or not — of unsettling what was once widely accepted and understood. It’s the judicial equivalent of ‘flooding the zone with shit’ and the result is the same when it’s done in law as it is when it’s done in media — it renders all that was known to be certain as indeterminate and up for grabs. It puts us all at the mercy of powerful deciders and consolidates the power to decide those newly open questions in an authority figure. It recalibrates both truth and power as emanating from someone else.”

    1. Kafantaris, were you quoting from someone? If so, you picked a good quote.

  20. Isn’t recusal for personal interest or involvement in a case? What is her involvement in the election, except as a voter, like everyone else?

  21. It is telling that Senate Democrats voted unanimously against ACB, not on the grounds that she was unqualified, or even on the grounds that they didn’t want a conservative, but as revenge for Garland.

    And yet now they cackle that she needs to recuse herself because she is beholden to Trump.

    The only justice I know of who was so political as to require recusal was RBG.

    1. Her swearing in was a campaign event and now it’s a campaign ad.

      1. Why shouldn’t Trump tout one of his major accomplishments in a campaign ad?

        Court appointments are a major reason I voted for him, and his success at making good appointments and getting them confirmed is a major reason I am voting for him again.

        1. He can tout the appointment all he wants.

          She shouldn’t appear in the ad. I doubt she was sandbagged, but if she was she could ask Trump to take it down.

  22. I think Justice Barrett will decide on the merits of the case, and if Biden wins, he wins. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.
    Obviously she is the better choice for deciding the election. But don’t think that will stop Democratic whining and violence if Biden loses.

    1. I thought state legislatures decided elections for President that failed to get electors seated.

    2. Unlike if it had gone to the House, where even if Trump won by 10 million votes, Biden would be found the winner.

      If a Presidential election “goes to the House”, the House is obliged t vote “immediately” with one vote for each State delegation. We do not know which, if any, party will control the majority of State delegations after 3 January. It’s likely to be fairly close – I think that even after a good shellacking for the GOP in 2018, State delegations were 26 R, 22 D and 2 even.

      Nancy might try to prevent a vote, using her actual majority of members, but I doubt she’d get away with it.

      It’s also unlikely that either side could block a quorum. The quorum for this is set at one member from two thirds of the States, and each party currently has a member in 41 States. So if it goes to the House, the Rs have a bit of an edge now, but as of Jan 3rd that could flip.

      1. All state electoral votes are (by various state laws) to be certified by 12/8 at the latest. If the House is to vote immediately in the lack of an electoral majority they will have to vote with the current delegations, not the ones that will take office on 1/3

        1. No. The Electoral College votes in December, in each State. I believe this year it’s 14 December. The votes are then transmitted to Congress, where they are opened and counted on 6 January. The new Congress with new members starts on 3 January.

          On 6 January, the Joint Session of Congress counts the EVs. If they fail to count up a majority for any candidate, then the House gets to do its thing of voting by State delegations. So it’s definitely the new Congress that chooses the President. In January.

  23. I would have expected some conservatives to be self-aware enough to recognize the situation they are about to confront.

    The reckoning is nigh.

    Racists, religious kooks, gun nuts, anti-abortion absolutists, Blackman, gay-bathers, incels, xenophobes, aspies, misogynists, red-pillars, backwater rubes, and white male clinger blogs hardest hit.

    1. What do you have against gays who bathe?

  24. Professor Adler….Really looking forward to your blog post that will explain just how much Chinese money that Case Western accepted and failed to report for a dozen years. I am sure that blog post will be illuminating.

  25. ” Justice Elena Kagan recused from matters upon which she worked in the Solicitor General’s Office.”

    Didn’t Kagan not recuse on an ACA case that she had worked on as SG?

  26. Except for academic discussion, this topic needs no consideration. The odds against recusal are too great. When you add in her appearance last night at yet another Trump campaign event at the White House, it’s unlikely the thought would ever even cross her mind.

  27. Prof. Adler, you rightly note “President Trump’s own norm-breaking behavior” (obligatory disclosure – I didn’t/won’t vote for Trump), but are silent on the Judiciary Committee Democrats equally norm-breaking behavior. Many of these partisans either begged ACB for her vote on many different cases (mostly the ACA litigation, but also all election-related cases) or begged her to recuse. There should be Senate rules that would disqualify them from voting on a nominee if they engage in such behavior. But, perhaps that’s why none of them voted on the nomination (in Committee). This was shameful lobbying – very inappropriate. The attorneys who engaged in this should be disbarred.

  28. “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

    Reason has long-since left the building. Impartiality, then, won’t ever be *reasonably* questioned.

  29. Not so sure I agree about Justice Ginsburg. True, she need not have recused herself in all cases involving Trump Administration policies. But the immigration ban cases involved a charge that Trump himself was biased and that that bias motivated the bans. It strikes me that one could reasonably question the objectivity of an avowed Trump-hater on that question.

    1. It strikes me that one could reasonably question the objectivity of anyone that hedges on whether Trump is biased.

  30. I would say no, simply because the election cases are too important to risk a series of 4-4 decisions leaving conflicting circuit court decisions intact

    This also conveniently works as a reason that Barrett needed to be confirmed rapidly, before the election.

  31. The problem with Adler’s argument is that deciding a Presidential election is more momentous than the typical SCOTUS case, eve most of the more prominent ones.

    Imagine this. Biden wins the popular vote by a healthy margin, but the EC is close, and the race will be decided by the outcome in PA. It appears Biden has carried PA, but there is, inevitably, litigation that reaches the Supreme Court. The Court, by a 5-4 margin, with Barrett in the majority, gives Trump PA’s votes, and the Presidency.

    Sound attractive?

  32. having a 9th justice is important to avoid ties, not to rule one way or the other. This is critical when time is of the essence, such as in election cases involving the presidency.

    And the standard isn’t whether reasonable people might question the judge’s fairness, but whether the judge’s fairness may be reasonably questioned. None of the arguments presented here to argue for recusal are reasonable precisely because they evidently only would apply to Barrett rather than some or all of the other justices.

    Should Kagan and Sotomayor recuse because they celebrated their confirmations at the Obama-Biden White House? Don’t they feel indebted to Obama/Biden?

    And all presidential candidates stress the importance of the court to their election. Why would such a fact only cause Barrett to recuse rather than all justices?

    there is no standard set out here other than Unique Threat to Democracy (TM).

    1. I don’t recall Kagan or Sotomayer facing any cases that would install Obama as president.

      1. That’s the cool thing about sui generis rules — you don’t have to mess around with pesky principled distinctions and line drawing between the target behavior and other stuff you don’t find problematic.

    2. “having a 9th justice is important to avoid ties, not to rule one way or the other. This is critical when time is of the essence, such as in election cases involving the presidency.”

      Yes, I remember how important it was to solve this problem back in 2016.

  33. If Barrett declines to recuse herself from any cases pertaining to the 2020 election, she will have proven herself to be as dishonest and ethically-bankrupt as she appeared to be while being unprecedentedly evasive during the Senate hearings.

  34. Caperton v. A.T. Massey Coal doesn’t apply to this case. In that case the judge had a continuing dependency on the contributor and would personally suffer if the financial support was cut off. There is nothing Trump can do to Barrett if she rules against him. In fact, what benefit at all would it be to her to vote the way that Trump wants? That’s why it has never been thought that justices must recuse in cases in which the president who nominated them has an interest.

    If we say that justices must recuse if they might be influenced by a desire that more nominees of the kind favored by a particular president might be nominated (or not be nominated) then all justices must recuse.

  35. videos produced by third parties.

    This is disingenuous. It’s not like the video was shot on a cell phone by some random individual and she had no clue what was going on.

    She chose to star in a Trump campaign rally. Maybe not as bad as Kavanaugh talking about how his appointment was the result of the longest, most thorough, search in SCOTUS history, but not good.

    1. Wait, agreeing to be sworn in at the White House is choosing to star in a Trump campaign rally?

      1. Who could have imagined that Trump would use the swearing in for his own purposes? Not Barrett, who seems, based on her testimony, to have no opinions whatsoever, and never draws a conclusion about the most trivial point until it’s been fully briefed, etc.

        I mean, election day was more than a week off, and it’s not as if Trump had previously made the appointment an argument for his re-election. Or wait, maybe he did do that.

        Come on. Right now the rebuttable presumption is that she’s in the bag for Trump. I hope she proves that wrong, but I’m not optimistic.

  36. “if, in the end, Justice Barrett decides to recuse the President will have no one to blame but himself.”

    Uh huh. He’ll also have the too-clever-by-half legal priests at The Volokh Conspiracy to thank for helping badger Amy Barrett Cohen into recusing herself once already, diddling while the Republic dies by a massive vote fraud coup d’etat without a shot fired. Prissy law profs blaming the victims.

    Dems see this as a war, and they fight to win — with passive-aggressive help from the Volokh crowd. No Dem would recuse herself from these votes. Meanwhile, Volokh RINOs & ‘Libertarians’ play badminton by Marquis of Queensbury Rules.

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